PETITIONER:
CEMENT MARKETING CO. OF INDIA LTD.
Vs.
RESPONDENT:
ASSTT. COMMISSIONER OF SALES-TAX, INDORE & ORS.
DATE OF JUDGMENT30/10/1979
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
PATHAK, R.S.
CITATION:
1980 AIR 346 1980 SCR (1)1098
1980 SCC (1) 71
CITATOR INFO :
R 1981 SC1887 (3,17)
ACT:
Madhya Pradesh General Sales Tax Act 1958, S2(o) &
Central Sales Tax Act 1956 S2(h)-'Sale Price'-Sale of cement
under Cement Control Order-amount of 'freight'-whether part
of 'sale price' includible in taxable turnover of the
assessee.
Madhya Pradesh General Sales Tax Act 1958, S43 &
Central Sales Tax Act 1956, S9(2)-'false' return-Bona fide
belief of assessee that that amount of 'freight' did not
form part of the 'sale price' and not includible in the
taxable turnover-penalty whether leviable.
HEADNOTE:
The assessee (appellant) effected certain transactions
of sale of cement in accordance with the provisions of the
Cement Control order. The amount of freight which was
included in the 'free on rail destination railway station'
price and which was paid by the purchaser was deducted from
the price shown in the invoices sent to the purchasers. The
assessee proceeding on the basis that the amount of freight
did not form part of the sale price and was not includible
in the taxable turnover did not show it in the returns
submitted by it.
The Assistant Commissioner of Sales Tax took the view
that having regard to the provisions of the Cement Control
Order, the amount of freight formed part of the sale price
and was includible in the taxable turnover of the assessee,
and passed two orders of assessment, one under the Central
Sales Tax Act 1956 and the other under the Madhya Pradesh
General Sales Tax Act, 1958, including the amount of freight
in the taxable turnover of the assessee and levying tax upon
it and also imposing heavy penalty on the assessee on the
ground that the assessee had failed to disclose in its
returns the amount of freight as forming part of the taxable
turnover.
In appeals to this Court on the questions of: (1)
inclusion of the amount of freight in the taxable turnover
of the assessee and (2) imposition of penalty for not
showing the amount of freight as forming part of the taxable
turnover in the returns.
^
HELD: 1. (i) The amount of freight formed part of the
sale price within the meaning of the first part of the
definition of that term in Section 2(o) of the Madhya
Pradesh General Sales Tax Act, 1958 and Section 2(h) of the
Central Sales, Tax Act, 1956' and was rightly included in
the taxable turnover of the assessee. [1101E]
(ii) In Hindustan Sugar Mills v. State of Rajasthan
[1979] 1 SCR 276 this Court held that by reason of the
provisions of the Cement Control Order, 1967, which governed
the transactions of sale of cement entered into by the
assessee the amount of freight formed part of the sale price
within the meaning
1099
of the first part of the definition of that term contained
in Section 2(p) of the Rajasthan Sales Tax Act, 1954 and
Section 2(h) of the Central Sales Tax Act, 1956 and was
includible in the taxable turnover of the assessee. The said
decision must equally apply under the Madhya Pradesh General
Sales Tax Act, 1958, as the definition of 'sale price' in
Section 2(o) of the Madhya Pradesh General Sales Tax Act,
1958 is materially in the same terms as Section 2(p) of the
Rajasthan Sales Tax Act, 1954. [1101C-E]
2(i) The Assistant Commissioner of Sales Tax was not
justified in imposing penalty on the assessee under Section
43 of the Madhya Pradesh General Sales Tax Act, 1958 and
section 9 sub-section (2) of the Central Sales Tax Act of
1956 as the assessee could not be said to have filed 'false'
returns when it did not include the amount of freight in the
taxable turnover shown in the returns. [1103C, B]
(ii) Section 43 of the Madhya Pradesh General Sales Tax
Act, 1958 providing for imposition of penalty requires that
the assessee should have filed a 'false' return and a return
cannot be said to be 'false' unless there is an element of
deliberateness in it. The Section being penal in character,
unless the filing of an inaccurate return is accompanied by
a guilty mind, the section cannot be invoked for imposing
penalty. [1102D, 1102H]
(iii) Where the assessee does not include a particular
item in the taxable turnover under a bonafide belief that he
is not liable so to include it, it would not be right to
condemn the return as a 'false' return inviting imposition
of penalty. [1102F]
Hindustan Steel Ltd. v. State of Orissa, 25 S.T.C. 211,
referred to.
In the instant case, the assessee did not include the
amount of freight in the taxable turnover under a bonafide
belief that the amount of freight did not form part of the
sale price and was not includible in the taxable turnover.
The contention of the assessee through out was that on a
proper construction of the definition of 'sale price' in
Section 2(o) of the Madhya Pradesh General Sales Tax Act,
1958 and Section 2(h) of the Central Sales Tax Act, 1956,
the amount of freight did not fall within the definition and
was not liable to be included in the taxable turnover. It
cannot be said that this was a frivolous contention taken up
merely for the purpose of avoiding liability to tax. This
was a highly arguable contention. The belief entertained by
the assessee that it was not liable to include the amount of
freight in the taxable turnover could not be said to be
malafide or unreasonable. It cannot, therefore, be said that
the assessee filed 'false' returns necessitating imposition
of penalty. [1102A-D,E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 191-193
of 1978.
Appeals by Special Leave from the Judgment and Order
dated 28-12-77 of the Assistant Commissioner of Sales Tax,
Indore in R. C. No. IND/1/X/XIX/5 in case No. 118/72-73 for
the period 1-8-71 to 31-7-72, R. C. No. IND/I/1344 (Central)
in Case No. 84/72-73 for the period 1-8-71 to 31-7-72 and R.
C. No. IND/I/X/XIX/5 (TOT)
1100
in Case No. 118/72-73 for the period 15-11-71 to 31-7-72 and
rectified by orders dated 7-1-1978.
V. S. Desai (CA 191/78), B. R. Agarwala and P. G.
Gokhale for the Appellant.
S. K. Gambhir for the Respondent.
The Judgment of the Court was delivered by
BHAGWATI, J.-These appeals by special leave raise
common questions of law and it would be convenient to
dispose them of by a single judgment.
The assessee effected certain transactions of sale of
cement in accordance with the provisions of the Cement
Control Order during the assessment period Ist August, 1971
to 31st July, 1972 and in the course of the assessment of
the assessee to sales tax under the Madhya Pradesh General
Sales Tax Act, 1958 and Central Sales Tax Act, 1956, a
question arose whether the amount of freight which was
included in the ‘free on rail destination railway station’
price, but which was paid by the purchasers and hence
deducted from the price shown in the invoices sent to the
purchasers, formed part of the sale price so as to be liable
to be included in the taxable turnover of the assessee. The
assessee, proceeding on the basis that the amount of freight
did not form part of the sale price and was not includible
in the taxable turnover did not show it in the returns, but
the Assistant Commissioner of Sales Tax took the view that
having regard to the provisions of the Cement Control Order,
the amount of freight formed part of the sale price and was
includible in the taxable turnover of the assessee and on
this view, he passed two orders of assessment, one under the
Central Sales Tax Act, 1956 and the other under the Madhya
Pradesh General Sales Tax Act, 1958, including the amount of
freight in the taxable turnover of the assessee and levying
tax upon it and also imposing heavy penalty on the assessee
on the ground that the assessee had failed to disclose in
its returns the amount of freight as forming part of the
taxable turnover. The same position obtained also in regard
to the assessment period 15th November, 1971 to 31st July,
1972 and a similar order bringing the amount of freight to
tax and imposing heavy penalty on the assessee was passed by
the Assistant Commissioner of Sales Tax under the Madhya
Pradesh General Sales Tax Act, 1958. Since the question as
to whether in respect of transactions of sale of cement
governed by the Cement Control Order, the amount of freight
formed part of the sale price and was liable to be included
in the taxable turnover of the dealer, was pending decision
in this Court, the assessee
1101
preferred appeals directly to this Court by special leave
against the Orders of assessment made by the Assistant
Commissioner of Sales Tax. The assessee challenged in the
appeals not only the inclusion of the amount of freight in
the taxable turnover of the assessee, but also the
imposition of penalty for not showing the amount of freight
as forming part of the taxable turnover in the returns.
So far as the first question is concerned, namely,
whether the amount of freight formed part of the sale price
and was includible in the taxable turnover of the assessee
so as to be exigible to sales tax, it stands concluded by a
recent decision given by this Court in Hindustan Sugar Mills
v. State of Rajasthan & Ors.(1) It has been held by this
Court in that case that by reason of the provisions of the
Cement Control Order, 1967, which governed the transactions
of sale of cement entered into by the assessee with the
purchasers, the amount of freight formed part of the sale
price within the meaning of the first part of the definition
of that term contained in sec. 2 (p) of the Rajasthan Sales
Tax Act, 1954 and section 2(h) of the Central Sales Tax Act,
1956 and was includible in the taxable turnover of the
assessee. The definition of ‘sale price’ in section 2(o) of
the Madhya Pradesh General Sales Tax Act, 1958 is materially
in the same terms as section 2(p) of the Rajasthan Sales Tax
Act, 1954, and this decision must therefore equally apply
under the Madhya Pradesh General Sales Tax Act, 1958 and it
must be held that the amount of freight formed part of the
sale price within the meaning of the first part of the
definition of that term in section 2(o) of the Madhya
Pradesh General Sales Tax Act 1958 and section 2(h) of the
Central Sales Tax Act, 1956 and was rightly included in the
taxable turnover of the assessee.
We may point out that the observations made by this
Court in the Order dated 31st August, 1979 allowing the
Review Application of the assessee in Hindustan Sugar Mills
case (supra) are equally applicable in the present case and
the State will do what is fair and just to the appellant as
indicated by this Court in that Order.
The next question that arises for consideration is
whether the Assistant Commissioner of Sales Tax was right in
imposing penalty on the assessee for not showing the amount
of freight as forming part of the taxable turnover in its
returns. The penalty was imposed under section 43 of the
Madhya Pradesh General Sales Tax Act, 1958 and section 9
sub-section (2) of the Central Sales Tax Act, 1956 on the
1102
ground that the assessee had furnished false returns by not
including the amount of freight in the taxable turnover
disclosed in the returns. Now it is difficult to see how the
assessee could be said to have filed ‘false’ returns, when
what the assessee did, namely, not including the amount of
freight in the taxable turnover was under a bonafide belief
that the amount of freight did not form part of the sale
price and was not includible in the taxable turnover. The
contention of the assessee throughout was that on a proper
construction of the definition of ‘sale price’ in section
2(o) of the Madhya Pradesh General Sales Tax Act, 1958 and
section 2(h) of the Central Sales Tax Act, 1956, the amount
of freight did not fall within the definition and was not
liable to be included in the taxable turnover. This was the
reason why the assessee did not include the amount of
freight in the taxable turnover in the returns filed by it.
Now, it cannot be said that this was a frivolous contention
taken up merely for the purpose of avoiding liability to pay
tax. It was a highly arguable contention which required
serious consideration by the Court and the belief
entertained by the assessee that it was not liable to
include the amount of freight in the taxable turnover could
not be said to be malafide or unreasonable. What section 43
of the Madhya Pradesh General Sales Tax Act, 1958 requires
is that the assessee should have filed a ‘false’ return and
a return cannot be said to be ‘false’ unless there is an
element of deliberateness in it. It is possible that even
where the incorrectness of the return is claimed to be due
to want of care on the part of the assessee and there is no
reasonable explanation forthcoming from the assessee for
such want of care, the Court may, in a given case, infer
deliberateness and the return may be liable to be branded as
a false return. But where the assessee does not include a
particular item in the taxable turnover under a bonafide
belief that he is not liable so to include it, it would not
be right to condemn the return as a ‘false’ return inviting
imposition of penalty. This view which is being taken by us
is supported by the decision of this Court in Hindustan
Steel Limited v. State of Orissa(1) where it has been held
that “even if a minimum penalty is prescribed, the authority
competent to impose the penalty will be justified in
refusing to impose penalty, when there is a technical venial
breach of the provisions of the Act or where the breach
flows from a bona fide belief that the offender is not
liable to act in the manner prescribed by the statute…..”
It is elementary that section 43 of the Madhya Pradesh
General Sales Tax Act, 1958 providing for imposition of
penalty is penal in character and unless the filing of an
inaccurate return is accompanied by a guilty mind, the
section cannot be invoked for imposing penalty. If the view
canvassed on behalf of the Revenue were accepted, the re-
1103
sult would be that even if the assessee raises a bonafide
contention that a particular item is not liable to be
included in the taxable turnover, he would have to show it
as forming part of the taxable turnover in his return and
pay tax upon it on pain of being held liable for penalty in
case his contention is ultimately found by the Court to be
not acceptable. That surely could never have been intended
by the Legislature.
We are, therefore, of the view that the assessee could
not be said to have filed ‘false’ returns when it did not
include the amount of freight in the taxable turnover shown
in the returns and the Assistant Commissioner of Sales Tax
was not justified in imposing penalty on the assessee under
section 43 of the Madhya Pradesh General Sales Tax, 1958 and
section 9 sub-section (2) of the Central Sales Tax Act,
1956.
We accordingly reject the appeals in so far they are
directed against the inclusion of the amount of freight in
the taxable turnover of the assessee but allow the appeals
in so far as they relate to imposition of penalty of freight
in the taxable turnover of the assessee but allow the
appeals in so far as they relate to imposition of penalty
and set aside the Orders passed by the Assistant
Commissioner of Sales Tax imposing penalty on the assessee.
There will be no order as to costs of the appeals.
N. V. K. Appeals partly allowed.
1104